Whitworth v. Lumbermens Mutual Casualty Co.

Per Curiam. The plaintiff contends that the individual defendants gratuitously undertook to file the plaintiff’s claim with the South Carolina Highway Department and failed to do so within the time allowed. Interpreting the evidence of the plaintiff most favorably to him, it fails completely to show any basis for a finding that the individual defendants were authorized by the corporate defendant to enter into any such undertaking on its behalf, or that the filing of a claim on behalf of the plaintiff was within their course of employment as its agents. The granting of a motion by the corporate defendant for judgment of nonsuit as to it was, therefore, proper. The evidence shows no judicial determination that the letter written by the corporate defendant was not an adequate filing of the plaintiff’s claim under the South Carolina statute, but, in any event, there is no evidence whatever to indicate when or how the washout occurred or that the South Carolina Highway Department had any notice or knowledge that it had taken place. The recent case of Campbell v. South Carolina Highway Department, 244 S.C. 186, 135 S.E. 2d 838, also involved a claim for injuries resulting from a cave-in of a portion of a road due to a washout. There, the Supreme Court of South Carolina said, “The Highway Department is liable for injuries caused by defects or obstructions in highways only when it has actual or constructive notice of the defect or obstruction.” Therefore, if a claim had been properly filed by or on behalf of the plaintiff within the time allowed by the South Carolina statute, the evidence in this action is not sufficient to show that the plaintiff would have recovered any damages. If not, he has not been damaged by any failure of the individual defendants to file his claim even if they were under a duty to file it and did not. Furthermore, the evidence, when interpreted most favorably to the plaintiff, shows only that the individual defendants advised him that, in their opinion, the letter written by the corporate defendant to the South Carolina Highway Department was sufficient notice of the plaintiff’s claim, and that nothing else needed to be done until the plaintiff gathered together all of his medical bills and sent them to the South Carolina Highway Department. The plaintiff had a copy of this letter and was free to use his own judgment as to its effect. He was advised by friends to consult an attorney and elected not to do so. The motions of the individual defendants for judgment of nonsuit were properly allowed. Affirmed.